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06/07/83 STATE MISSOURI v. WILLIAM SELTZER

June 7, 1983

STATE OF MISSOURI, PLAINTIFF-RESPONDENT,
v.
WILLIAM SELTZER, DEFENDANT-APPELLANT.



From the Circuit Court of the City of St. Louis; Criminal Appeal; Judge James J. Gallagher.

Motion for Rehearing Overruled, Transfer Denied July 15, 1983.

Before Pudlowski, P.j., Kelly, Smith, JJ.

The opinion of the court was delivered by: Kelly

William Seltzer, the appellant was convicted by a jury in the Circuit Court for the City of St. Louis of Assault in the First Degree, § 565.050 RSMo. 1978, *fn1 and was sentenced to twenty five years in the custody of the Missouri Department of Corrections after a finding by the trial court that he was a persistent offender. § 558.016.4 (1). He appealed and we affirm.

The prosecution has its genesis in the shooting of one Caliborne Jones in the 4000 block of McRee Street in the City of St. Louis at approximately 8:30 p.m. on August 9, 1979. According to the State's evidence Jones and two friends, Charles Finley and James Strawder had been standing on the sidewalk at the location mentioned hereinabove when appellant approached them, holding a pistol in each hand. Appellant told Jones not to run, and asked him why he, Jones, had his brother looking for appellant. Jones, at this point, tripped over the street curbing and fell down. As he was getting up appellant shot him in the lower back. Immediately after the shooting appellant left the scene. Charles Finley also departed hurriedly from the scene but James Strawder remained on the scene and assisted Jones across the street and remained with him until the police and an ambulance arrived at the scene. The following day, August 10, 1979, appellant learned that the police were looking for him so he contacted them and turned himself in.

Appellant denied shooting Jones in his trial testimony, and testified that he had been at his sister's house at the time of the shooting, where he'd remained until his wife arrived there shortly after midnight.

Appellant presents three Points which he contends entitles him to a reversal of his conviction and a remand to the trial court for a new trial.

His initial Point Relied On is actually three Points, all dependent upon what he contends was the perjured testimony of the complaining witness Claiborne Jones that he saw appellant shoot him. Because of this allegedly perjurious testimony he postulates that the trial court erred, (1) in overruling his pro se motion to hold Jones in contempt of court, (2) in failing to declare a mistrial at the close of the State's case, and (3) in denying appellant a new trial on the ground his conviction was based on Jones' false testimony.

Appellant's contention in the trial court was that because Jones, during the taking of his deposition on April 3, 1980, testified that he did not see appellant shoot him but that Strawder told him it was appellant who shot him, Jones' testimony at a prior trial *fn2 that appellant shot him was perjurious; and he moved orally that his testimony at this trial should be barred for that reason. After the trial court indicated that he thought the discrepancies between the deposition testimony of Jones were a matter for the jury, appellant's counsel then moved the trial court to hold Jones in contempt and this motion also was denied.

While new trials based upon charges of perjury are not to be granted lightly, Tyler v. State, 501 S.W.2d 189, 190 [1](Mo. App. 1973); however, where it appears from competent and satisfactory evidence that a witness for the prosecution has deliberately perjured himself and that without his testimony the accused would not have been convicted, a new trial must be granted. State v. Harris, 428 S.W.2d 497, 500 [1] (Mo. 1968). This is so because a conviction resting upon perjured testimony would be the antithesis of a conviction evolving from a fair trial. State v. Gant, 586 S.W.2d 755, 763 [12, 13] (Mo. App. 1979). Where it appears from competent and satisfactory evidence that a witness for the prosecution has deliberately perjured himself and that without his testimony a accused would not have been convicted, a new trial must be granted. State v. Harris, supra, 1.c. 500.

However, the mere showing that a witness on a prior occasion made statements in a deposition contradictory of his testimony at trial is not sufficient to establish perjury in the absence of other evidence proving or pretending to prove that previous statements were true. Loveless v. Locke, 313 S.W.2d 24, 31 [6] (Mo. 1958), State v. Lee, 617 S.W.2d 398, 403 [6] (Mo. 1981). Such inconsistencies go only to credibility of the witness and do not destroy said witness's trial testimony. Loveless v. Locke, supra, 1.c. 31 [4].

Furthermore, Jones' testimony that appellant shot him was corroborated by Finley and Strawder, both of whom witnesses the shooting.

We find no error meriting a new trial on any of the grounds presented under this Point and so rule.

Appellant further contends that he is entitled to a new trial because the trial court erred in overruling his objection to the Assistant Circuit Attorney arguing to the jury the fact that appellant's wife had not testified in support of his alibi. This line of argument he contends violated ยง 546.270 and Rule 27.05 (a), both of which proscribe any ...


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